RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 14 November 2007
DOCKET NUMBER: AR20070010758
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.
Ms. Catherine C. Mitrano
Director
Mr. Mohammed R. Elhaj
Analyst
The following members, a quorum, were present:
Ms. Linda D. Simmons
Chairperson
Ms. Carmen Duncan
Member
Mr. Qawiy A. Sabree
Member
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion, if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests correction of his DD Form 214 (Report of Separation from Active Duty), dated 30 September 1977, to show credit for active Reserve service during the period 20 June 1979 through 8 January 1982.
2. The applicant states that he retired on 30 September 1977 and was assigned to the U.S. Army Reserve Control Group (Retired) on 1 October 1977. He was transferred the U.S. Army Reserve (Active) on a Statement of Indispensability approved by the Secretary of the Army on 20 June 1979. He reverted back to the USAR Control Group (Retired) on 8 January 1982. He also states that he was in pay status with the active Reserve and attended drills and active duty training (ADT), but was required to return a portion of his retired pay for those days spent in attending assemblies and ADT.
3. The applicant provided the following additional documentary evidence in support of his application.
a. DD Form 214, dated 30 September 1977.
b. Letter, dated 14 June 1979, Office of the Chief Army Reserve, Subject: Request for Special Findings of Indispensability in the Ready Reserve.
c. Reserve Component Personnel and Administration Center, St. Louis, Missouri, Orders Number 07-87840, dated 5 July 1979.
d. Headquarters, 124th U.S. Army Reserve Command, Fort Lawton, Washington, Orders 167-2, dated 24 October 1979.
e. Headquarters, 91st Division, Sausalito, California, Orders Number 027-002, dated 7 February 1980.
f. Headquarters, Sixth U.S. Army, San Francisco, California, Orders Number 009-250, dated 8 January 1982.
g. Letter, dated 25 August 1981, U.S. Army Reserve Components Personnel and Administrative Center; Subject: Transfer from the Retired Reserve to the Ready Reserve.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's records show that he enlisted in the Regular Army on 4 September 1957. He completed basic combat and advanced individual training and was awarded 71H (Administrative Specialist). He subsequently had a series of extensions and/or reenlistments and retired on 30 September 1977. The DD Form 214 he was issued shows he completed 20 years and 27 days of creditable military service.
3. The applicants records further show that on 16 May 1979, he requested a transfer from the Retired Reserve to the Ready Reserve in accordance with paragraph 5-3 of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), to fill a vacancy at the 6219th Receiving Station (USARECSTA), Sunnyvale, California.
4. By memorandum, dated 31 May 1979, the Chief, Enlisted Branch, Reserve Component Personnel Management Division, Sixth U.S. Army, verified eligibility and appropriate position vacancy, recommended approval of the applicants request and forwarded the request through the Office of the Chief Army Reserve (OCAR) to the Secretary of the Army.
5. By decision memorandum, dated 14 June 1979, the OCAR recommended the Secretary of the Army make a special finding of indispensability to permit the applicants transfer to Ready Reserve. The Secretary of the Army approved the applicants request of indispensability on 18 June 1979.
6. On 5 July 1979, Department of the Army, Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, Missouri, published Orders Number 07-87840, relieving the applicant from the USAR Control Group (Retired) and assigning him in the Reserve to the 6219th USARECSTA, Sunnyvale, California, effective 20 June 1979, in MOS 75Z (Senior Personnel Sergeant), and in accordance with paragraph 5-3 of Army Regulation 140-10.
7. On 24 October 1979, Headquarters, 124th U.S. Army Reserve Command, Fort Lawton, Washington, published Orders Number 167-2, relieving the applicant from the 6219th USARECSTA, Sunnyvale, California, and reassigned him to the 1st Battalion, 362nd Regiment, 1st Brigade, 91st Division, Vallejo, California, effective 1 October 1979, to accept a position as a Unit Technician, in accordance with paragraph 2-2 of Army Regulation 140-10.
8. On 7 February 1980, Headquarters, 91st Division (Training), Sausalito, California, published Orders Number 027-002, reassigning the applicant from the 1st Battalion, 362nd Regiment, 1st Brigade, 91st Division, Vallejo, California, to Headquarters and Headquarters Detachment, 4th Brigade, 91st Division, San Francisco, California, effective 11 February 1980, as a USAR Technician.
9. On 25 August 1981, the OCAR opined in a memorandum that a Secretary of the Army findings indispensability status is violated when the designated Soldier is promoted or reassigned. If promoted, such promotion would be voided and the Soldier would revert back to the Retired Reserve.
10. On 8 January 1982, Headquarters, Sixth United States Army, San Francisco, California, published Orders Number 009-250, relieving the applicant from Headquarters and Headquarters Detachment, 4th Brigade, 91st Division, San Francisco, California. He reverted to the Retired Reserve and was assigned to the USAR Control Group (Retired) effective 8 January 1982, in accordance with Army Regulation 140-10.
11. Army Regulation 140-10 covers policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers. It defines Ready Reserve Control Groups and the Selected Reserve. It also gives detailed procedures for removing Soldiers from an active status gives procedures for inter-service transfer and selective retention of unit Soldiers. Chapter 5 of the version applicable at the time prescribed the policy and procedure for transfer to and from the Retired Reserve.
12. Paragraph 5-3 of Army Regulation 140-10, in pertinent part, states that a member of the Retired Reserve entitled to retired pay may not be placed in the Ready Reserve unless the Secretary of the Army makes a special finding that his services are indispensable. Each request with complete justification would be limited to a specific period of service in the Ready Reserve of not more than one year. The Secretary of the Army finding of indispensability is limited to a specific position. A member serving under such finding is not eligible for transfer to a different position unless a new finding for the position to which the member is to be changed is requested and approved. The Commander, Reserve Component Personnel and Administration Center, St. Louis, Missouri, will issue the transfer Orders for all approved applications. A retired member transferred to the Ready Reserve by reason of indispensability for a specific authorized position would be transferred back to the Retired Reserve when he or she ceases to occupy the position he/she was selected to fill or when he/she is no longer qualified for retention. Members serving under findings of indispensability will not be transferred to other positions. Members who are erroneously transferred from the position for which found indispensable will be removed when the error is discovered. If the member was promoted as an element of that transfer, their promotion is void.
13. Army Regulation 140-315 (Employment and Utilization of U.S. Army Reserve Military Technicians) establishes policies and prescribes procedures for the employment, utilization and separation of military technicians (MTs) by the U.S. Army Reserve (USAR). The intent of this program is to provide experienced personnel from the Retired Reserve to be employed as civilian technicians. It specifically provided the employment as a civilian technician (not continued service in a particular military position or grade) be the point of indispensability which if ceased would cause the member to revert back to the Retired Reserve status.
14. Army Regulation 635-5 (Separation Documents) governs the standardized policy for preparing and distributing the DD Form 214. The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service. It is important that information entered on the form should be complete and accurate. This regulation specified that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training. It also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.
15. Title 10, U.S. Code, Section 1402, states that a member of the armed forces who first became a member of a uniformed service before September 8, 1980, and who has become entitled to retired pay or retainer pay, and who thereafter serves on active duty (other than for training), is entitled to recompute his pay or retainer pay upon his release from that duty in accordance with a listed table.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DD Form 214 should be corrected to show credit for active Reserve service during the period 20 June 1979 through 8 January 1982.
2. The applicant retired on 1 October 1977; was transferred to the Ready Reserve on 20 June 1979; and reverted back to the Retired Reserve on 8 January 1982. He served under the Secretary of the Army Findings of Indispensability to a specific position, time, and place. He was not eligible for transfer or promotion. He was a member of the Ready Reserve for mobilization purposes, but was not called to active duty and deployment. The applicant has not provided any evidence, such as pay vouchers, to show he served on active duty and for what purpose, during the period he was in the Ready Reserve.
3. There is no statutory authority for re-computing retired pay to add credit for service in the Ready Reserve after retirement. Members will be transferred back to the Retired Reserve, if necessary, in the grade held at the time of retirement. Enlisted members who were receiving retired pay did not need to execute a DD Form 4 (Enlistment and/or Reenlistment in the Armed Forces of the United States). They remain assigned to the Ready Reserve until removal for age or loss of reserve assignment, at which time they revert back to Retired Reserve status.
4. The DD Form 214 is a summary of a Soldiers most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on termination of a Soldiers service. The applicants transfer from the Retired Reserve to serve in the Ready Reserve took place after his active duty DD Form 214 was issued.
5. In view of the foregoing, the applicant is not entitled to a relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__lds___ __cd____ __qas___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
Linda D. Simmons
______________________
CHAIRPERSON
INDEX
CASE ID
AR20070010758
SUFFIX
RECON
DATE BOARDED
20071114
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
(DENY)
REVIEW AUTHORITY
ISSUES 1.
100.0000
2.
135.0000
3.
4.
5.
6.
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